Ham Breakfast Is Not a Constitutional Right

(CN) — Civil rights protesters who were arrested and ejected from a ham breakfast at the Kentucky State Fair were not denied their First Amendment rights, a divided Sixth Circuit ruled Tuesday.

Chris Hartman, Carla Wallace and Sonja DeVries of The Fairness Campaign protested the 52nd annual Ham Breakfast at the 2015 Kentucky State Fair.

They had announced the day before that they would protest the event’s sponsor, the Kentucky Farm Bureau Federation, for being “anti-LGBT, anti-teacher, anti-union, anti-choice and pro-death penalty.”

Protesters at the fair must apply for a permit 72 hours before the event, but Fairgrounds officials decided to allow the protest in a specific zone to avoid disrupting fair activities.

Twenty-four members of The Fairness Campaign arrived the next morning, wearing orange T-shirts protesting the Farm Bureau Federation’s policies. Kentucky State Trooper Jeremy Thompson warned them not to disrupt the ham breakfast.

“I’m going to do what I have to do,” Hartman replied.

When the breakfast began, Fairness Campaign members left the protest zone and entered the breakfast area, with tickets. They stood silently together during a speech.

Hartman was arrested for disorderly conduct and failure to disperse. Most of the protesters left, but Wallace and DeVries remained and also were arrested for failure to disperse.

After the charges were dismissed, the protesters sued Thompson and two other state troopers, alleging false arrest, malicious prosecution and First Amendment violations.

The federal court for the Western District of Kentucky ruled in the troopers’ favor, and the Sixth Circuit agreed 2-1 on Monday.

U.S. Circuit Judge Richard Suhrheinreich wrote for the majority that the troopers did not establish the protest zone, so they did not violate the protesters’ First Amendment rights.

“Thompson did not ‘cause’ the protest zone to occur,” Suhrheinreich wrote. “He recommended its placement in response to a request from the Fairgrounds’ Board.”

Suhrheinreich added that the protest zone was established to control the flow of the 2,000 attendees of the Ham Breakfast — not in response to the protesters’ message.

“In the protest zone, plaintiffs could speak. They could hold signs. They could have megaphones. They could convey their message to anyone and everyone entering the Ham Breakfast,” Suhrheinreich wrote.

He agreed with the troopers that they had probable cause to arrest the protesters, who stood up together and displayed their grievances on orange T-shirts.

“Plaintiffs did not seek a total silent demonstration,” the judge wrote. “They were unequivocal that their intention was to draw attention to themselves and away from the speaker.”

He added that with establishment of probable cause, the protesters other claims “fall like a house of cards.”

One of these claims was battery relating to Hartman’s arrest.

“Hartman decided, in protest, to dead drop by picking his feet up and forcing the troopers to carry him out of the Ham Breakfast,” the judge wrote. “When Kentucky State Troopers had to pick up Hartman and carry him out, they used as much force as necessary.”

U.S. Circuit Judge John K. Bush wrote a partially concurring opinion.

He stated that probable cause was established by the troopers’ knowledge that the protesters had stood together in front of the stage at the previous year’s Ham Breakfast.

Bush also noted that Hartman had told Officer Thompson he would “ramp up (his) activities.”

U.S. Circuit Judge Karen Nelson Moore dissented on the claims of wrongful arrest and First Amendment retaliation.

“As articulated by Thompson, individuals who appeared to speak in favor of the KFB’s policies would not be placed in the protest area, because their views would not be ‘contrary to an event’ taking place in the South Wing,” she wrote.

Moore also asserted that the protestors established an issue of fact over whether Trooper Brian Hill had probable cause to arrest DeVries.

“A reasonable jury could determine that standing up silently in the back of a large, heavily populated room does not create a hazardous or physically offensive condition,” Moore wrote.